01A14486
11-14-2002
Roy Ozawa Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Roy Ozawa v. Department of the Air Force
01A14486
November 14, 2002
.
Roy Ozawa
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14486
Agency No. ELOR00005
DECISION
INTRODUCTION
This appeal involves a dispute between Roy Ozawa (�complainant�) and the
Department of the Air Force (�the agency�), his employer. At all relevant
times, complainant worked for the agency as a Maintenance Mechanic
Supervisor at the agency's Elmendorf Air Force Base in Alaska. He filed
a formal equal employment opportunity complaint against the agency on
or around March 23, 2000, alleging that the agency had discriminated
against him unlawfully on the basis of his race (Tlinglit Indian) by
(1) failing to consider him for a newly created Maintenance Mechanic
Supervisory position; (2) transferring some of his subordinates away
from his agency �zone� and into a newly-created �zone�; (3) misplacing
his Supervisor's Employee Brief (agency Form 971); (4) conducting a
desk audit that did not accurately reflect his skills or the number of
personnel assigned to him; and (5) generally harassing him about his
job performance and leave taken. Complainant thus essentially claimed
that the agency had violated Title VII of the Civil Rights Act of 1964
(�Title VII�), as amended, 42 U.S.C. � 2000e et seq.
The agency addressed these allegations in a final agency decision (�FAD�)
issued on or around June 26, 2001. In this FAD, the agency analyzed
complainant's complaint as raising claims of race-based disparate
treatment and harassment. The agency ultimately concluded, though,
that complainant had not proven any illegal employment discrimination
had occurred. After receiving this FAD, complainant promptly filed a
notice challenging the FAD with us, the United States Equal Employment
Opportunity Commission (�EEOC� or �this Commission�). We accepted
complainant's notice and docketed it as this appeal.
We are now issuing this decision under the authority granted to us by
29 C.F.R. � 1614.405(a). Under this same regulation, we must review
the FAD in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a).
This means that in deciding this case, we can accept (if accurate)
or reject (if erroneous) the agency's factual and legal conclusions.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15. Accordingly, we have
carefully reviewed the entire record before us in our attempt to discern
whether a preponderance of the evidence warrants a rejection of the
agency's determinations � or supports any finding of illegal employment
discrimination here. See 29 C.F.R. � 1614.405(a). We conclude that it
does not.
Complainant's complaint raises claims of Title VII-proscribed race-based
disparate treatment and/or harassment. With respect to complainant's
disparate treatment allegations, where there is no direct evidence of
any illegal motive for the agency actions in question, an evidentiary
�burden of production� is placed initially on the complainant to put
forth a prima facie case of unlawful discrimination. The complainant
may do so by presenting facts which, if unexplained, reasonably give rise
to an inference of discrimination (i.e., that a prohibited consideration
was a factor in the relevant adverse employment actions). If complainant
successfully establishes such a prima facie case, the evidentiary burden
of production then shifts to the agency to articulate legitimate,
non-discriminatory reasons for its ostensibly objectionable conduct.
If and when the agency offers such a lawful explanation, the evidentiary
burden of production shifts (one last time) back to the complainant to
show that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in any
Title VII claim of disparate treatment, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that he or she
was a victim of intentional discrimination. See, e.g., Sweeney, 439
U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,
460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518;
and Reeves, 530 U.S. at 143. Complainant has not met this burden here
with respect to his various claims. Even if we assume for argument's
sake that he satisfied his initial obligation to put forth a prima facie
case of race-based disparate treatment, the agency responded accordingly.
That is, and as the agency explained in its FAD, the agency provided
various legitimate, non-discriminatory reasons for the agency actions
complainant questioned. In our view, complainant failed to prove that
the agency's facially legitimate, non-discriminatory explanations
were a pretext for any prohibited motivation. The preponderance of
the evidence simply does not support the notion that complainant was
treated disparately because he is Tlinglit Indian. Cf. St. Mary's Honor
Center, 509 U.S. at 515, 519 (holding that �a reason cannot be proved
to be �a pretext for discrimination' unless it is shown both that the
real reason was false, and that discrimination was the real reason�
for the defendant's employment action, and noting that �[i]t is not
enough . . . to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination�).
Similarly, the record does not support a finding that complainant
was subjected to any sort of prohibited harassment, either. As this
Commission's guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainant appears to be asserting that the agency engaged in unwelcome
conduct that culminated in a �hostile work environment.� Even if we
assume for argument's sake that the agency actions of which complainant
complained were severe or pervasive enough to create a hostile work
environment (and we do not think they were), we still could not find
the agency liable for unlawful harassment here. To prove a case of
harassment under Title VII, complainant must demonstrate that agency
officials harassed him because he is Tlinglit Indian. See Vicarious
Liability Enforcement Guidance, at 4 (providing that �[h]arassment does
not violate federal law unless it involves discriminatory treatment on
the basis of race, color, sex, religion, national origin, age of 40 or
older, disability, or protected activity under the anti-discrimination
statutes�). As we noted above, however, we are not convinced the
agency took any of the challenged actions because of complainant's
race. Consequently, we cannot hold the agency liable for illegal
harassment-based discrimination, either.
Therefore, we conclude that the FAD in question should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations within thirty (30) calendar days of
receipt of this decision or within twenty (20) calendar days of receipt
of another party's timely request for reconsideration. See 29 C.F.R. �
1614.405; see also EEO MD-110, at 9-18. All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
In the absence of a legible postmark, the request to reconsider shall be
deemed timely filed if it is received by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. � 1614.604.
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant must name as the defendant in the complaint the person who is
the official agency head or department head, identifying that person by
his or her full name and official title. Failure to do so may result in
the dismissal of complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant to file the action without payment of
fees, costs, or other security. See Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial
of the request is within the sole discretion of the Court. Filing a
request for an attorney does not extend complainant's time in which to
file a civil action. Both the request
and the civil action must be filed within the time limits as stated in
the paragraph above entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 14, 2002
__________________
Date